Volume 22 — Abbott's New Cases

Proceedings by the executors of the will of Maria Hunter, deceased, to assess and fix the amounts of the collateral inheritance tax. -----

<p>Trial of issues in N. T. common pleas, and application for decree of probate on return of verdict.</p> <p>On August 27, 1885, the deceased, Mary Teresa Hatten, departed this life, leaving a will dated the 17th of April, 1880.</p> <p>Upon the petition for probate of the will of the deceased, filed by the executors, the surrogate, in September, 1885, issued his citation to the heirs at law and next of kin, including among others, one Michael Bowen, an uncle of deceased, who filed an answer to the petition, with the usual allegations against the probate.</p> <p>Upon the issue thus joined proofs were taken, and on October 6, 1886, the surrogate in compliance with section 2545 of the Code of Civil Procedure, made and filed his findings of fact and conclusions of law, and thereupon directed that the will should be adrñitted to probate.</p> <p>The contestant thereupon appealed from the decision of the surrogate to the general term of the supreme court, which court, after héaring counsel, reversed the order of the surrogate and directed that the matter should be tried before a jury in the court of common pleas on issues of fact incorporated in the order.</p> <p>The statute authorizing this proceeding is as follows:</p> <p>§ 2588. “ Where the reversal or modification of a decree by the appellate court ” [on appeal from surrogate’s court] “ is founded upon a question of fact, the appellate court must, if the appeal was taken from a decree made upon a petition to admit a will to probate, or to revoke the probate •of a will, make an order, directing the trial, by "a jury, of the material questions of fact, arising upon the issues between the parties. Such an order must state, distinctly and plainly, the questions of fact to be tried; and must, direct the trial to take place, either in a circuit court, specified in the order; or in the county court of the county of the surrogate ; or, in the city and county of Hew York, in. the court of common pleas. After the trial, a new trial may be granted, as prescribed in section two thousand five hundred and forty-eight of this act.”</p> <p>Section 2548 thus referred to, is as follows :</p> <p>§ 2548. [Am’d 1886.] “ A trial by jury, pursuant to an order made in a proceeding for the disposition of the real property of a decedent, made as prescribed in the last section, can be reviewed, in the first instance, only upon a motion for a new trial. A new trial may be granted by the surrogate or the court in which the trial took place, or, if it took place at the circuit court, by the supreme court, in a case where a new trial of specific questions of fact, tried by a jury, pursuant toan order for such trial, made'in an action, would be granted. The verdict of the jury must be certified to the surrogate’s court by the clerk of the court in which the trial took place.”</p> <p>Upon the order for trial of issues of fact, the cause came on to bb tried in the court of common pleas before Judge Van Hobsen and a jury. The questions were submitted to the jury, who answered them in favor of proponent.</p> <p>The question was then raised how the record should be returned, whether to the supreme court who ordered the trial, or to the surrogate’s court, where the final decree was to be entered.</p>

The complaint alleged that the defendant, George Wu Dawson, was employed as the agent of the plaintiff, William Roeber, to sell coal and turn over the receipts from such sales monthly; that in pursuance of the arrangement between them, the defendant had sold coal and received a certain amount of money therefor, which he had failed to pay over after demand, and detained and converted the same to his own use.

Trial by the court. The action was brought by Franz X. Winkler, and another, against William Summers and others. The facts appear in the opinion.

Appeal by the defendant from a judgment entered upon> the verdict of a jury in the Albany county court for $464.06 and costs—in all $563.41 ; and from an order denying a motion made on the minutes of the court, to set aside the verdict and for a new trial. The action was brought by Hattie Spotten against William II.

Gottlieb Webber sued Nathan Manne, as assignee, etc., and others, in the supreme court in the first district, to reeov-er possession of a considerable stock of furniture and materials for upholstery • and upon an affidavit containing the usual allegations, and in which the value of the property was stated in a single sum, without indicating the value of any particular articles, gave the sheriff a requisition for all the •articles, under which the sheriff replevied a part of…

Action to annul a corporation. The attorney-general sued in the name of the People to •declare the franchise of the North Hi ver Sugar Befining Company annulled and forfeited, on the ground that the defendant had brought itself within subdivisions 2 and 5 of section 1798 of the Code of Civil Procedure; which provides: “ Upon leave being granted, as prescribed in the next section, the attorney-genera! may bring an action against a corporation created by or under the laws of…

<p>1. Wills; testamentary capacity.] In order to establish the testamentary capacity of a decedent of unusually advanced age, and consequently weakened powers, it must be shown that he fully understood the nature and consequences of his testamentary act; and this by evidence aliunde the formal execution of the will.</p> <p>2. Same; evidence.] The fact that a will is illegal in some of its provisions is not evidence to show that the attempted disposition was not understood by the testator, unless the testator was a lawyer, and well acquainted with the law.</p> <p>3. Same; obscurity as affecting testamentary capacity.] A will which appeared to have been comprehended by the testator and which' expressed his ideas accurately, although in language more obscure than is ordinarily used, and not readily understood by a stranger, must be held to comply with the law requiring that the testator must be possessed of testamentary capacity.</p> <p>4. Same.] In this proceeding for the revocation of the probate of the testator’s will on the ground of his incapacity, it appeared that the' testator, who at the time of making the will was ninety-one years old, had well preserved regulative faculties and business acumen down to the time of the execution of the will, as was testified to by many who had had extensive business transactions with him, although it further appeared that his perceptive powers and memory were somewhat impaired.—Meld, that in view of the facts, the testator was possessed of legal testamentary capacity, as he was able to understand the condition of his property, his obligations to those who were related to him by tics of blood, or who had legal or moral claims upon him ; and the character and effect of the provisions of his will and codicils.</p> <p>5. Same.] Mere mental impairment alone is not deemed sufficient to defeat a will, if the person who made it appears to have had sufficient understanding to appreciate its effect.</p> <p>6. Same.] The rule that a person who has sufficient capacity to make the simplest will, and who is compos mentis, can make any will, even the most complicated,—approved.</p> <p>7. Wills; undue influence; will by client in favor of an attorney.] The doctrine laid down in Wilson v. Moran, 3 Bradf. 172, 180, that the circumstances surrounding the making of a will by a client in favor of an attorney call for the largest degree of circumspection and vigilance to see that the act was in consonance with the views and wishes of the testator, and was not the result of influence exercised through the medium of the existing confidential relation, is only to be applied where the testator is shown to have been dependent upon his attorney for information concerning the contents of the will; or where the testator was an infirm person and the provisions of the will are such as to create suspicion, or the circumstances under which it was executed are such as to lead to the inference of undue influence.</p> <p>8. Same.] Meld, however, in this case, where the testator’s property amounted to about $500;000, and the attorney, who was also the draughtsman of the codicil, was made a beneficiary to the extent of about $30,000 ; and the evidence showed the testator to have expressed affection for the attorney from time to time; that a relative, who was also a large beneficiary under the will, was present at the execution of the codicil, under which he was to receive less than was provided for him in the will; that others were present and heard the attorney read the codicil over to the testator and his approval thereof,—that the testator was not the victim of deception or imposition, and that the codicil was not executed under restraint</p> <p>■6. Evidence; burden of proof of undue influence in malting a will.] The burden of proof in such a case is upon the proponent to show that the testator fully understood the nature and consequences of the testamentary act.</p> <p>.10. Estoppel; acceptance of legacy under probate.] The petitioner, an" assignee of a legacy under a will, in proceedings for the revocation of the probate of the will, is estopped from maintaining the proceedings by having accepted the benefit under the probate ; and his subsequently paying the same into court for the benefit of the estate, does not enable him to maintain the proceedings to revoke.*</p> <p>’ll. Parties; effect of amendment of petitioner.] Nor will the offer to add another party as petitioner, against whom the defense of estoppel could not be urged, avail in such proceedings where the statutory time within which to commence the proceedings had elapsed at the time of the proposed amendment, and some of the parties being infants were not represented, as such amendment cannot be held to give the new petitioner the same rights she might have had, if joined originally in the petition.</p> <p>12. Probate; proceedings to revolee ; questions of validity of will will not be passed upon.] Upon such proceedings, where the issue is whether the will was legally executed, the questions as to the validity of attempted dispositions under the will will not be passed upon; but must be raised either upon the judicial settlement of the accounts of the executors, or in a proceeding for that purpose, or in an action brought in another court.</p>

Motion by plaintiff to continue an injunction pendente lite, and motion by defendant to change place of trial.

This proceeding was commenced by David M. Koehler, a purchaser at a referee’s sale in partition, whose petition prayed that he might be relieved from his purchase ; that the referee be directed to return to him the sum paid at the sale; and that the referee and the parties liable be required to pay him the expenses incurred for examination of the title.

<p>1. hi junction; conflicting orders.] If an injunction has been duly granted and served, a counter injunction obtained from another judge in a cross action, if conflicting with the first and only enforcible by a violation of the first, should be vacated, irrespective of the merits.</p> <p>2. Railroad companies.] A surface street railroad company, except in the city of New York, cannot construct its road across the track of a steam railroad without consent, unless the question of compensation and manner of crossing has been first legally determined in proceedings under the statute.</p>

<p>Costs.] Title is not deemed to have been in issue, within the rule allowing costs though only nominal damages be recovered, where the action is for a nuisance rendering plaintifE’s dwelling uninhabitable, although ownership be alleged and denied, for the claim does not depend on ownership.*</p>

This was an action brought by Anthony E. Maicas against Leon Leony for a dissolution of a co-partnership existing between them, and for an accounting. The facts appear fully in the report of- this case below, on page 1 of this volume.